Action against engineer for negligent report – Expert witness conceding opposing expert’s opinion sustainable – Plaintiff withdrawing claim – Surveyor’s legal representatives making application for wasted costs order – Judge refusing application – Appeal dismissed
In about August 1986 the first defendant, L, a structural engineer, was instructed to carry out a visual survey of a property. L reported that,inter alia, “settlement is not a problem with this house”. In September 1986 the plaintiff, W, wished to purchase. Before granting W a mortgage the building society required an engineer’s report. L’s report, which W never saw, was sent to the building society which granted the mortgage.The plaintiff purchased the property and decided to sell four years later. Although there were a number of interested purchasers each of them declined to proceed. W subsequently arranged for an engineer’s report. In his first report the engineer advised further investigation. In his full report the engineer stated that he was “unable to guarantee the future stability of the property in its present condition”.
The plaintiff brought an action against L claiming damages for negligence of £15,705, being the difference between the price paid for the property and its true market value, alleging that L had failed to spot defects and advise further investigation. On the second day of the trial the plaintiff’s expert engineer, under cross-examination, eventually conceded that in terms of stability the view of L’s expert witness was sustainable. The plaintiff then withdrew his claim and counsel for L applied to the judge for a wasted costs order against the plaintiff’s legal representatives. The judge reminded himself that he should be alert to the possibility that an application against a non-party might be motivated by resentment of an inability to obtain an effective order for costs against a legally-aided litigant and held that, for the purposes of RSC Ord 62 r 11, he was satisfied that the legal representatives had applied the correct test, the “Bolam test”, for the negligence alleged, and that the issue whether or not those acts or omissions had caused the alleged damage was a question for expert opinion. L appealed.
Held The appeal was dismissed.
1. The questions asked in cross-examination of the expert engineer giving evidence for the plaintiff went to the question of stability, a matter which in turn went to the issue of damages, not to the issue of negligence. The question whether a competent engineer could form the view that the plaintiff’s expert’s view on stability was sustainable was not the proper test to apply to that issue. The expert’s answers were not the end of the plaintiff’s case.
2. The judge had been right to conclude that the professional advisers had not been negligent. Members of the bar and solicitors should be circumspect about applying for wasted costs orders, particularly in reasonably clear cases, and should be hesitant to appeal the refusal of such an application where the judge had heard the facts and exercised his discretion in a careful and thorough manner, as the judge in the instant case had done.
3. The appellant was ordered to pay costs on an indemnity basis.
Robert Sherman (instructed by Cunningham John & Co, of Thetford) appeared for the appellant/first defendant; Giles Kavanagh (instructed by Steele & Co, of Harleston) appeared for the plaintiff; Mark Lomas (instructed by Reynolds Porter Chamberlain) appeared for the plaintiff’s counsel, John Holt and Anthony Bate.